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Miguel A. Mejia v. Juana Mejia

July 22, 2011

MIGUEL A. MEJIA, PLAINTIFF-APPELLANT,
v.
JUANA MEJIA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-987-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2011

Before Judges Reisner and Alvarez.

Plaintiff Miguel A. Mejia appeals from a December 11, 2009 Family Part order, subsequently amplified on February 1, 2010. See R. 2:5-1(b). The court denied plaintiff's application to emancipate the parties' son Jonathan and reduce child support payments payable to defendant Juana Mejia retroactive to July 2, 2008. For the reasons that follow, we affirm.

Because of the somewhat unusual procedural history in this case, we reiterate it in some detail along with the parties' circumstances as pertinent to this appeal. Plaintiff and defendant have three children, the oldest of whom is emancipated. Remaining on the support order are the parties' nineteen-year-old and seven-year-old. The older child was in a drug rehabilitation center at the time of plaintiff's application. The younger child resides with her mother. Plaintiff has three children with his current wife: an adopted nine-year-old child, and two children of the marriage, ages three and one.

At the time of the parties' divorce in April 2006, plaintiff agreed to pay $850 per month in child support. Later during that year, however, he became ill from several serious medical conditions. In January 2007, defendant agreed to accept reduced child support of $500 per month. In February 2008, plaintiff was terminated from his employment for insubordination and ceased making any payment towards child support.

Plaintiff made a series of applications to reduce his support obligations and defendant made a series of countervailing motions to secure his compliance with court orders. The order from which plaintiff appeals resulted from an October 6, 2009 application to emancipate his older child and modify support based upon the birth of his youngest child with his new wife. Additionally, he sought to have Social Security payments received by the children, derivative of the benefits he obtained as a result of his disabilities, reduce the amount of his obligation.

In support of that motion, plaintiff asserted that he received $1454 in monthly benefits, while each of his children received derivative benefits of $242. Defendant acknowledged the nineteen-year-old child was in an in-patient rehabilitation program, but countered that he had no employment, and would resume living with her and attending school upon completion of the program.

On December 11, 2009, the court denied plaintiff's application without prejudice, but granted a ninety-day suspension of the arrearage portion of the order, or $151.67 per month. Plaintiff subsequently filed an initial application for reconsideration on December 30, 2009. That motion was returned to counsel for a "deficiency in the 'notice to litigant.'"

On January 25, 2010, plaintiff submitted a second motion for reconsideration as well as a notice of appeal. On February 1, 2010, the court issued an amplified statement of reasons for the December 11 order. The judge explained he did not emancipate the nineteen-year-old because of the uncertainty of his status and the possibility he would again become financially dependent on his mother if he returned to high school. The court also noted plaintiff had not documented the income available to his second family. In similar fashion, plaintiff had not provided documentation regarding either the amount of his children's derivative benefits or the dates they were received. Therefore, despite the undisputed birth of plaintiff's youngest child, the judge did not modify the child support order.

On March 15, 2010, after the filing of the notice of appeal, plaintiff's last motion for reconsideration was denied without prejudice because the Family Part lacked jurisdiction. On April 30, after plaintiff filed his brief and appendix with this court, we granted a temporary remand to allow that motion to be heard by the judge who issued the disputed orders.

No transcript of the proceeding has been provided, but we know from an order included in the appendix that on July 16 the Family Part judge reduced plaintiff's support obligation to $43 per week, retroactive to October 16, 2009, the start date for the proceedings resulting in the order now on appeal. The judge also required defendant to keep plaintiff informed of the nineteen-year-old's status. The court explained it was able to act on plaintiff's application because he had finally documented his receipt of $1454 monthly in Social Security disability benefits and $500 monthly in food stamps. He also documented that his current wife received $162 weekly in temporary disability, and that his two oldest children from that marriage received $181.80 per month each in derivative benefits, while his daughter with defendant received $242.80 per month from December 2008 to November 2009, and $181.80 per month thereafter. Plaintiff also submitted a Case Information Statement (CIS) pursuant to Rule 5:5-2.

Plaintiff subsequently communicated to the judge that child support had been incorrectly calculated. Accordingly, on December 10, 2010, plaintiff filed a supplemental brief with this court challenging only the clerical errors included in the erroneous calculations, the decision to continue the oldest child's ...


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